Boyle won’t take part in mediation with Portsmouth

Wednesday

Dec 19, 2018 at 4:12 PMDec 19, 2018 at 4:12 PM

PORTSMOUTH — Toyota of Portsmouth owner James Boyle will not participate in a scheduled mediation session with city officials.

Boyle told the Portsmouth Herald on Wednesday he decided not to participate in the session scheduled for Jan. 18 with former N.H. Supreme Court Chief Justice John Broderick because he has had enough with what he sees as unfair tactics of city officials.

“I don’t believe the city wants to settle this no matter what they say,” Boyle said. “They’re the guys with the multi-million dollar judgment against them. They should come to me with an offer.”

“I love my attorney but I can’t keep paying him,” he added.

Boyle recently won a Superior Court decision in which Judge N. William Delker set aside Portsmouth’s taking of 4.6 acres of his land next to his car dealership off of the Route 1 Bypass by eminent domain. The city appealed that ruling to the state Supreme Court.

In a separate case, a Rockingham Superior Court jury in 2017 ordered the city to pay Boyle $3.57 million for lost profits from his Greenleaf Avenue dealership property due to the city sewer line that runs through the property the city has now taken. Both sides appealed that verdict to the state’s highest court.

Boyle blasted the city administration in general and City Manager John Bohenko in particular at the end of last week over what he claims is their bad faith negotiations.

Boyle met with Mayor Jack Blalock, Assistant Mayor Cliff Lazenby and City Councilors Rebecca Perkins-Kwoka and Rick Becksted last Wednesday to try to settle the long and increasingly expensive legal battle between the two sides. They could not reach a global settlement on both cases, Boyle said. But the city councilors asked him during that meeting if his attorney could “draft a document” outlining a proposed deal on the eminent domain lawsuit “that could be shared with the entire City Council,” Boyle said.

Boyle said his attorney John Kuzinevich did that at a substantial cost to him. But last Friday, Bruce Felmly, director of the litigation department at McLane Middleton in Concord, called Kuzinevich and told him the potential deal was off, Boyle said.

City Attorney Robert Sullivan sent Boyle a letter Monday saying the city councilors did not support the proposed deal, but added that negotiations could continue.

Boyle said Wednesday every time he meets with city officials to try to reach a deal, he never knows “if they have the authority to reach a settlement, or even what they’re going to do next.”

Boyle has shared a document with the city outlining what he believes is its financial exposure in the two lawsuits. His total estimate for the sewer line case is $8.39 million, which includes the $3.57 million verdict, $40,000 for the cost of his experts at trial, $2.38 million for what the jury initially gave him for years 2007-2013 and $2.4 million for 2017 and 2018. The city could then owe him $2.8 million in the eminent domain case, which includes $2.4 million in damages for not being able to use his land and $400,000 for attorney’s fees and cost, Boyle said.

That does not include damages for future lost profits, he said, which he believes could reach as high as $50 million.

“Every time we’ve met, and we’ve met four or five times, there’s no end to this. They really believe I'm going to lose everything and, hey, they might be right, but I don’t think so,” Boyle said. “Neither side knows how this is going to end, but they could end up owing me a lot of money, and I don’t think they understand that yet.”

Deputy City Attorney Suzanne Woodland said Felmly will be paid $555 an hour for his work on the case until the end of the year, then his hourly rate will increase to $575.

By not participating in the mediation, Boyle said, “At least I'm saving the city $555 an hour.”

Reached Wednesday afternoon, Sullivan said he had not heard Boyle would not participate in the mediation. “If it's true I am sorry to hear that,” Sullivan said. “I know from the city point of view we will not be abandoning any efforts to settle the case.”

He acknowledged if Boyle doesn’t participate in the mediation, “the issues will have to be solved by litigation in the court.”

“I do not blame Mr. Boyle for whatever feelings he might have,” Sullivan said. “If those are the feelings he has, I wish he would reconsider.”

Sullivan declined to say if Bohenko approved Felmly’s hiring. “The internal actions taken with regard to legal representation are not something I would comment on,” he said.

The city has an agreement with Felmly to work with it on the case, but no contract, Sullivan said. He added he couldn’t “predict at this point how much work is going to be required” for Felmly to do.

Sullivan also declined to estimate how long it would take for the state Supreme Court to deal with both cases.

“If every question has to be litigated to the bitter end, it is impossible to say when that end might occur,” he said.

Mayor Blalock said he hadn’t heard Boyle will not participate in the mediation. “It’s disappointing, I thought mediation was a good idea,” he said Wednesday.

He declined to comment on Felmly’s hourly rate, but acknowledged the City Council did not vote to approve it.

“I don’t know that the City Council has ever weighed in on outside counsel legal fees. It’s not something that I’m aware of.”

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